Decision Date: 09/12/95 Archive Date:
09/12/95
DOCKET NO. 93-24 379 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for a mental disorder.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Lemoine, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1972
to January 1980 and from September 1981 to April 1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1992 rating decision of the
Albuquerque, New Mexico Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied the
veteran's claim seeking entitlement to service connection
for a mental disorder.
We note that the veteran was originally assisted by AMVETS
in her appeal. However, there is no power of attorney in
the record designating AMVETS as her representative. In
January 1994, the Board wrote the veteran asking her to
designate a representative and return the form to the Board
in an enclosed self-addressed envelope. The Board indicated
that if no response was received within 30 days, it would be
assumed that the veteran did not desire representation. No
response was received from the veteran. Therefore, the
veteran is unrepresented in this appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that she is entitled to
service connection for a mental disorder. The veteran
contends that her problems began in 1986 when she was
accused of shirking duties. She further contends that she
was not given a proper medical examination while in the
service and that she was constantly harassed by her
superiors, which caused her mental anguish.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed all of the evidence of
record. Based on a review of the evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the claim of service connection for a mental
disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. An acquired psychiatric disorder was not manifested
during service.
3. An acquired psychiatric disorder which is related to
service has not been shown following service.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 1991); 38 C.F.R. § 3.303 (1994).
2. A personality disorder is not a disability for which
service connection may be granted. 38 C.F.R. §§ 3.303(c),
4.9, 4.127 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Review of the veteran's service medical records reveals that
in February 1973, she was picked up by ambulance while
suffering from hyperventilation. The record indicated that
when examined she was alert, orientated, and without
complaint, but seemed somewhat depressed and would not
discuss the problem which was personal. In June 1973, the
veteran again reported with hyperventilation. It was
indicated that she was crying, her eyes and lips were
swollen, but she would not discuss her problems. In May
1974, the veteran was seen with complaints of headaches and
neck pains related to her pregnancy and the impression was
anxiety. In August 1974, the veteran was seen with multiple
complaints that she felt sick but nothing was found.
Subsequently in August, the veteran was seen with complaints
of pain of an undetermined etiology. In December 1975, the
record indicated the veteran was 30 to 32 weeks pregnant and
was in an automobile accident. She was described as very
upset and the impression was anxiety from the automobile
accident. Records from August 1978 indicated the veteran
was two months pregnant and was involved in another
automobile accident. It was reported that she did not lose
consciousness or hit the windshield or steering column,
though she was crying, frightened and upset. The
examination was within normal limits other than the veteran
being upset emotionally and the assessment was a motor
vehicle accident without injury. Upon separation
examination in January 1980, psychiatric evaluation was
normal. At that time, the veteran reported a history of an
automobile accident in September 1978 with a momentary loss
of consciousness and occasional severe headaches since.
The veteran reentered active service in September 1981.
Upon enlistment examination in June 1981, psychiatric
evaluation was normal and there was no significant history
regarding the veteran's mental condition. In August 1984,
the veteran was referred to the Mental Health Clinic with a
myriad of emotional problems involving her children, work,
and quarters. On examination, the veteran was alert,
orientated and in acute emotional distress, feeling
discounted in her job for some time. It was reported that
she was nervous, worried, uncertain with moderate anxiety,
depressed mood with chronic feelings of helplessness,
complicated by chronic aloneness. The veteran was not
suicidal but judgment and insight were poor. Financial
indebtedness contributed to the problem. Interpersonal
relationship difficulties at work were reported stemming
from a sexual harassment complaint. The impression was an
adjustment disorder with mixed emotional features.
Further review of service medical records reveals an April
1986 record which states that the veteran was initially
referred to the Mental Health Clinic for job related stress
in August 1984 but treatment was terminated on a premature
basis by the veteran. It further states that the veteran
was seen in March 1985 regarding a child advocacy matter and
had a telephonic consultation in November 1985, but she
refused either appointment and as there had been no contact
from her in five months, her case was considered closed. In
July 1987, the veteran reported to the military hospital
with complaints of pain and was admitted for bed rest. The
record indicated no objective pathology as extensive work-up
was within normal limits. The examiner noted that the
veteran may have a strained or sprained back but tests
showed no significant pathology and the pain was out of
proportion to any objective abnormality. The veteran
reported having problems at work and that she was being
discriminated against. It was recommended that she return
to duty and take leave if necessary. The matter was
discussed with the veteran's commander, who requested a full
psychological evaluation. A psychological evaluation of the
veteran was conducted in August 1987. Her commander's
request reported possible mental instability, threatening to
kill three supervisors, a record of numerous financial
problems and bad debts. The results of the mental status
evaluation and psychological testing indicated that the
veteran was alert, orientated, and without acute distress.
Her speech was guarded and calculated in its content. She
expressed obvious discomfort with being involved in an
evaluation and manifested mildly independent and non-
conforming orientation. Numerous defense mechanisms were
noted, particularly avoidance and denial. The veteran
manifested poor judgment, impulsive decision making, and
limited insight into a cause and effect relationship for her
problems. The veteran's memory appeared intact. Her mood
was angry, labile and dysphoric. She appeared mildly
depressed and anxious, with no suicidal ideation. Her
thought content was ordered without pathology. On
psychological testing, the veteran was essentially non-
compliant, oppositional, defensive and guarded concerning
the testing process, and as such, testing was not reflective
of any further psychodynamics beyond her orientation toward
the testing and evaluation process. The evaluation summary
states that a strong suspicion exists that the veteran had a
personality disorder. However, her denial to access to
information precluded a complete diagnostic opinion. The
veteran was found free of mental defect, disease, or
derangement and had the mental capacity to understand the
nature and consequences of her acts. She was not suffering
from any psychiatric condition that would warrant separation
from the service for medical reasons. The diagnosis was
mixed personality features, characteristic of passive-
aggressive, anti-social and immature traits.
The veteran was discharged from service in April 1988.
However, there is no separation physical examination within
the record.
Postservice medical evidence includes a private neurological
examination of the veteran in April 1988 by Michael
Freedman, M.D. The veteran underwent VA examination in July
1989. Both of these examinations were regarding residual
injuries to the veteran's lumbar spine, for a claim
unrelated to the veteran's claim of a mental disorder.
However, it was noted upon the July 1989 VA examination that
the veteran found her pain to be depressing and that
psychiatric treatment might be useful.
Received in February 1992, from James L. Simms, M.A., was an
April 1988 psychological evaluation of the veteran's mental
health status. The report noted that her history regarding
her service was jumbled, but she indicated she was divorced
from an alcoholic husband and she felt she was the object of
discrimination, and possibly rape, based on her race and
sex. It was also noted that she had recently fallen in a
department store and hurt her back. Bender-Gestalt testing
showed the veteran to be without brain damage. Trail
Makings tests discounted the possibility of schizophrenia
and reinforced the veteran's ability to adapt to the demands
of daily living. Findings on IQ testing may have been
reflective of a neurotic condition, such as hysteria. There
was an indication that the veteran was emotionally disturbed
as she was unable to distinguish the essential from the
nonessential. It was indicated that the veteran was
converting personally distressing troubles into more
rationally or socially acceptable problems, converting
psychological problems into somatic complaints. The
evaluation concluded that the veteran had been under
considerable stress recently and her mental health had
deteriorated and she was in need of supportive counseling.
In November 1992, the veteran appeared and presented
testimony at a hearing on appeal before a VA hearing
officer. The veteran testified that she was raped by her
commander in 1982 and she filed a sexual harassment
complaint but did not admit to being raped. She stated that
she started having a lot of problems after filing the sexual
harassment complaint involving her housing and her job. She
further testified that she was presently under financial
strain and she asked that to be considered in her favor. A
complete transcript of the testimony is of record.
Upon VA psychiatric examination in November 1992, the
objective findings noted that the veteran was neatly dressed
and was an articulate and open historian, with good
spontaneous speech. She was intelligent, fully orientated,
alert and sensorium was clear. There was no evidence of
psychotic behavior. There were no delusions, hallucinations
or thought disorder. Thinking was well organized and goal
directed. She was able to think abstractly. Recent and
remote memory were intact. The veteran was visibly anxious
and depressed, with frequent crying with tears as she
described her frustrations in the service and difficulties
since her discharge. There was passive suicidal ideation
but no intent. The impression was dysthymia and rule out
post traumatic stress disorder. The psychosocial stressors
were attributable to financial problems, unemployment and
depression.
Received in January 1993 were VA outpatient treatment
records from March 1988 to February 1992. The majority of
these records deal with the veteran's residuals from her
lumbar injury. Records from December 1991 indicate that she
reported to the VA psychiatric outpatient clinic and was
tearful in her interview with a long litany of numerous
situations in which she had not been properly treated. She
had feelings of despondency with frequent crying spells.
The diagnosis was adjustment disorder with depressed mood.
It was recommended that she continue counseling at the VA
clinic. Records from January and February 1992 indicated
that the veteran was continuing counseling.
Analysis
Initially, we note that we have found that the appellant's
claim is well-grounded within the meaning of 38 U.S.C.A. §
5107(a). That is, we find that she has presented a claim
which is not inherently implausible. See Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). Furthermore, after
reviewing the record, we are satisfied that all relevant
facts have been properly developed. The record is devoid of
any indication that there are other records available which
might pertain to the issue on appeal. No further assistance
to the veteran is required to comply with the duty to assist
her, as mandated by 38 U.S.C.A. § 5107(a).
In order to establish service connection for a disorder, the
evidence must show the presence of the disorder and that it
resulted from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303. A determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service. Watson v. Brown,
4 Vet.App. 309, 314 (1993).
Upon our review of the record, we note that the veteran had
several incidents involving hyperventilation and attacks of
anxiety during her first period of service from 1972 during
1980. Specifically, in February and June 1973 she suffered
from hyperventilation and was seemingly depressed but
refused to discuss her personal problems. These incidents
tend to rebut the veteran's contentions and testimony that
her mental problems began in 1982 after filing a sexual
harassment complaint against her commander.
In regard to the veteran's contentions and testimony that
she was raped by her commander in 1982 and that was the
start of her mental problems, we note that the service
records contains no specific allegations of such a rape.
The report of the private evaluation conducted by Mr. James
Simms in April 1988 notes that she related that she was the
object of discrimination (possibly rape), but the examiner
does not link the presence of any psychiatric disorder to an
event from service.
We further note that in August 1984, while in service, the
veteran was diagnosed with an adjustment disorder with mixed
emotional features, and at that time, there was no
indication of any psychiatric disorder. Likewise, upon a
mental status evaluation in August 1987, there was no
indication of a psychiatric disorder. To the contrary, it
was strongly indicated, although not conclusively diagnosed
as a result of the veteran's failure to cooperate with the
evaluation, that she had a personality disorder. The final
diagnosis, at that time, was mixed personality features,
characteristic of passive-aggressive, anti-social and
immature traits. We find this history to be significant as
a personality disorder is not a disability for which service
connection may be granted. See 38 C.F.R. §§ 3.303(c), 4.9,
4.127 (1994).
Postservice medical evidence also fails to establish the
presence of a psychiatric disorder that has been related to
service. The evaluation by Mr. Simms does not contain a
specific diagnosis, but does note that the veteran appeared
to be emotionally disturbed converting psychological
problems into somatic complaints. He noted that she had
been under recent stress and listed her various complaints,
but did not actually relate her psychiatric problems to
service. Upon VA examination in November 1992, she was
described as visibly anxious and depressed during the
interview. She described her frustration in the Air Force
and her difficulties in functioning in life in general. The
diagnosis was dysthymia and rule out post traumatic disorder
and the stressors were listed as financial problems,
unemployment and chronic depression. The examiner did not
relate the veteran's psychiatric status to service or an
event from service.
Based on the medical evidence of record, we find that the
veteran had a personality disorder during service and not
any psychiatric disorder. Furthermore, we conclude that she
is not currently shown to have an acquired psychiatric
disorder, or any other recognized mental disability, which
is in any way related to service. Accordingly, service
connection for a mental disorder is not established.
In reaching our decision, we have considered the doctrine of
giving the benefit of the doubt to the veteran under 38
U.S.C.A. § 5107 and 38 C.F.R. § 3.102 (1994), but do not
find the evidence is of such approximate balance as to
warrant its application. The preponderance of the evidence
is against the claim.
ORDER
Service connection for a mental disorder is denied.
S. L. COHN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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